Adams v. Target Stores - (unpublished No.A4146-11T1, App. Div. decided March 14, 2013)
On October 27, 2004, petitioner sustained a compensable injury to her left foot and ankle. Medical records showed she broke her foot and sprained her ankle while missing a rung stepping off a ladder. Undisputed medical records presented during trial showed that petitioner developed and was treated for CRPS and Allodynia (hypersensitivity).
Temporary disability was paid to the petitioner from the date of injury until petitioner was deemed to have reached maximum medical improvement as of January 31, 2006. Petitioner applied for and received Social Security Disability which was made retroactive to the date of injury. At trial the WCJ determined that due to her injuries, petitioner was totally and permanently disabled. Respondent during trial attempted to argue that since petitioner was totally disabled as of the accident, temporary disability should not have been paid and they should be reimbursed for same. The WCJ disagreed and determined that the date of totality was February 1, 2006.
On appeal, respondent argued that petitioner was totally disabled as of the date of injury and therefore Target should get reimbursed for all the temporary disability paid to the petitioner. The Appellate Division rejected all of Respondent's arguments concluding Target, "cannot now look in hindsight and state that (petitioner) was always permanently and totally disabled and should therefore not have received temporary disability payments."
The decision implies that if Respondent had agreed to total disability then no temporary disability would be due the petitioner at least as of the date of that concession.
Cottone v. Medical Supply Corp., - (unpublished No. A-3504-11T1, App. Div. decided March 20, 2013)
Petitioner was an employee of Medical Supply Corp when on or about December 22, 2005, she was struck by a coworker's car. Petitioner suffered a fractured skull and internal bleeding. A New Jersey Claim Petition was filed in March 2006. In September 2006, the Claim Petition was dismissed by the Court without a full trial.
New Jersey Manufacturers Insurance Group (NJM), the UIM carrier, paid more than $250,000.00 in benefits to the petitioner. NJM filed a verified complaint and an Order to show cause in the law division seeking to deny the UIM claim on the theory that it is barred by the availability of worker's compensation benefits. NJM argued that the original claim was not fully litigated on its merits and if it had been, it would have been deemed compensable and the employer would have had to pay benefits not the UIM carrier.
The Law division ordered NJM to re-open the proceedings in Workers' Compensation Court and to intervene as the original petition had not been adjudicated on its merits.
The matter was re opened and several facts were stipulated including the fact that the Respondent did not own the parking lot and there was not a specifically designated parking spot for Respondent's employees.
The WCJ determined that the coming and going rule clearly applied to the situation. Since Respondent exercised no control over the area in question, petitioner was not entitled to any worker's compensation benefits. The Appellate Court agreed with the WCJ when it determined that Respondent did not exclusively control the parking lot in which petitioner was injured. The lot was shared by other unrelated business tenants.
NJM's concern that benefits had inappropriately been laid at their feet was understandable. They surmised that the parties in the workers compensation matter concluded that petitioner's most advantageous pursuit of benefits was through UIM and not workers comp. They resisted the strategy but ultimately the WCJ and the Appellate Division felt that petitioner's injuries did not arise out of and during the course of her employment since the injuries took place in a multitenant parking lot.
Sara L. De Long